The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by Respondent due to Petitioner's race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Mildred M. Moultrie (Petitioner) is a member of a protected class. She is a black female who applied for employment in the position of Deputy Court Administrator for Juvenile Services with the First Judicial Circuit of Florida (Respondent). The primary duties of the position sought by Petitioner required service as the liaison between the Judiciary and the Department of Juvenile Justice, Department of Children and Family Services, local law enforcement agencies, schools and other community organizations serving the juvenile justice system. Petitioner had no experience in working with juveniles, and was unaware that dependent children were a part of the juvenile system. All applications and/or resumes submitted were reviewed and scored on a point system that assigned points to the following areas: education, related education, juvenile experience, and management experience. The points allocated were totaled and applicants with a score of seven or higher were submitted to the selection committee for oral interview. Petitioner did not score the minimum seven points and was initially informed that she would not be granted an interview. Petitioner contacted J. Wayne Peacock, Court Administrator for the First Judicial Circuit to inquire why she was not given an interview. Peacock advised Petitioner that she did not score the required number of points. Nevertheless, Peacock agreed to grant Petitioner an interview anyway. Petitioner was added to the group of applicants to be presented for oral interview with the Selection Committee. The Selection Committee was composed of J. Wayne Peacock, Court Administrator (white male); John Parnham, Circuit Court Judge, Juvenile Division (white male); and Eugene Brown, Director, Pensacola/Escambia County Human Relations Commission (black male). The committee selected Pauline Ryan (white female), for the position based upon, including but not limited to, her prior work experience as a Case Coordinator II assigned to the Escambia County Family Focused Juvenile Drug Court and the strength of her oral interview with the Selection Committee. Ryan's work experience from 1993 to the time of her selection has been directly related to juvenile services and exceeds the juvenile work experience of Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2003. COPIES FURNISHED: John Lewis Allbritton, Esquire Allbritton & Gant 322 West Cervantes Street Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mildred M. Moultrie Post Office Box 17705 Pensacola, Florida 3252 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent should grant the Petitioner an exemption from disqualification from employment in positions of special trust.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Thomas seeks employment at the Everglades Youth Development Center, which is a 102-bed residential treatment facility for high-risk male juvenile offenders aged 13 to 18 years. Because of Mr. Thomas's criminal background, he is disqualified from working in positions of trust with the Department and can only work in such positions if he is granted an exemption from the disqualification. Criminal History Mr. Thomas was arrested in August 1987 and charged with lewd and lascivious behavior with a minor. In an Information dated October 7, 1987, issued by the State Attorney for the Sixth Judicial Circuit in Pinellas County, Florida, Mr. Thomas was charged with three counts of handling and fondling two girls under the age of 16 years in or about July or August 1987, in violation of Section 800.04(1), Florida Statutes (1987).1 At the time, Mr. Thomas was known as Anthony Lee Sanders, "Sanders" being his father's surname. Count I of the Information named Carolyn Coston, a/k/a Carolyn Gordon, as an alleged victim, and Counts II and III of the Information named Lonnette Frazier as an alleged victim. Mr. Thomas first met Ms. Frazier when he played basketball at Gibbs High School in St. Petersburg, Florida; she used to attend the games. Mr. Thomas also knew Ms. Frazier's parents. At the times set forth in the Information, Mr. Thomas was a counselor in the summer recreation program of the Police Athletic League, where he was responsible for supervising and working with children enrolled in the program. Ms. Coston and Ms. Frazier were enrolled in the program and under Mr. Thomas's supervision. Mr. Thomas and Ms. Frazier had dated more than six months before the incident in August 1987 that resulted in his arrest. At the time, Ms. Frazier was 14 or 15 years of age; Mr. Thomas was 19 years of age and a student at Manatee Junior College. Mr. Thomas admits that he and Ms. Frazier had one encounter of a sexual nature in August 1987, but he denies that he and Ms. Frazier had a second such encounter. Mr. Thomas knew Ms. Coston only as a client in the Police Athletic League summer recreation program. He denies ever having had an encounter of a sexual nature with her. After his arrest, Mr. Thomas was jailed for two weeks, then released on his own recognizance. He was represented by a public defender, who advised him and his mother that, if he were convicted of any one of the charges, he could be sent to prison for 25 years. Mr. Thomas was afraid of being sentenced to prison, and he agreed to accept a plea bargain offered by the State Attorney's office. It was his understanding that his attorney tried to convince the State Attorney to dismiss the count in the Information involving Carolyn Coston but was unsuccessful. As a result, Mr. Thomas pleaded guilty to all three counts of the Information, although he insists that he was actually guilty of engaging in only one sexual encounter with Ms. Frazier and that he never had a sexual encounter with Ms. Coston. In an Order Withholding Adjudication of Guilt and Placing Defendant on Probation, dated January 15, 1988, the court found that Mr. Thomas was "not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." Accordingly, the court withheld adjudication of guilt and placed Mr. Thomas on two years of community control and five years of probation. Mr. Thomas was permitted to continue attending classes and athletic games and practices, and he was allowed to travel with his athletic team. He was also required to pay for the duration of his community service and probation $12.00 per year to First Step, Inc., an organization whose function is not explained in the order. In an order entered May 12, 1988, the court modified the terms of Mr. Thomas's community control by changing the remainder of the community-control period to probation, with the sentence of five years of probation previously imposed to follow. Supervision of Mr. Thomas's probation was transferred to Sioux City, Iowa, where Mr. Thomas had received a scholarship to attend Morningside College. The May 12, 1988, order further provided that, "upon the Defendant's arrival in Sioux City, Iowa, he shall be evaluated to determine whether counseling as a sex offender is needed and, if needed, sex offender counseling shall be made a condition of Defendant's probation." Mr. Thomas did not graduate from Morningside College, but transferred to Bethune Cookman in Dayton Beach, Florida. In an undated affidavit prepared on or around August 25, 1992, Mr. Thomas's Florida probation officer stated that Mr. Thomas had violated the terms of his probation in the following respects: Violation of Condition (8) which states: "You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit your home, at your employment site or elsewhere, and you will comply with all instructions he may give you." In That, the aforesaid has violated this condition by willfully refusing to attend and successfully complete a Sexual Offender Treatment Program as instructed by his Probation Officer throughout his probation and as ordered by Judge Crockett Farnell on 5-12-88.[2] Violation of Condition (9) which states: "You will pay to First Step, Inc. the sum of Twelve Dollars ($12) per year for each year of probation ordered, on or before ninety days from the date of this order." In That, the aforesaid has violated this condition by willfully refusing to pay to First Step, Inc. the sum of $84 or $12 per year as evidenced by a balance of $84.00 as of 8-12-92. Mr. Thomas was at the time attending Bethune Cookman College. He did not enroll in sex offender counseling because he could not afford the fee; he did not make the payments to First Step, Inc., because he believed that these payments were waived because all of the other fees related to his probation had been waived. Mr. Thomas sold his car, paid the monies owing First Step, Inc., and enrolled in the counseling program. On November 6, 1992, Mr. Thomas entered a plea of guilty to the charges that he had violated the terms of his probation. An order was entered in which Judge Grable Stoutamire accepted the plea, continued Mr. Thomas on probation, and imposed the conditions that Mr. Thomas would "[s]uccessfully complete sex offender counseling now enrolled in" and that Mr. Thomas's "[f]our years DOC [Department of Corrections] suspended sentence is reinstated and will be imposed if defendant deliberately fails to complete sex offender course." Mr. Thomas successfully completed counseling, and he was granted early termination of probation on July 26, 1994. Employment history since 1994. Todd Speight, who is currently the Program Director of the Everglades Youth Development Center, has known Mr. Thomas since they met in 1989, when they both attended Morningside College in Iowa. Mr. Speight observed Mr. Thomas work with children when he was in college, and, in 1994, Mr. Speight recruited Mr. Thomas to work as a youth care worker at the Victor Cullen Academy, which is a residential treatment facility for high risk juveniles located in Maryland. At the time he recommended Mr. Thomas in 1995 for employment at the Victor Cullen Academy, Mr. Speight was aware that Mr. Thomas had pleaded guilty to charges of inappropriate sexual conduct with a girl who was a client of an agency that employed him.3 Mr. Speight was also aware that Mr. Thomas, nonetheless, successfully passed the Maryland employee screening process after he was hired at the Victor Cullen Academy. Mr. Thomas ended his employment at the Victor Cullen Academy when he moved back to Florida in 1995. In 1995 and 1996, Mr. Thomas worked briefly for Bridges of America, a drug and alcohol treatment program that was under contract with the Department of Corrections. He left his position with that organization because the Department of Corrections required that employees of the program be released from probation for at least three years. In the latter part of 1996, Mr. Thomas began working as a residential instructor at the Hope Center, which is a residential center for persons with developmental disabilities that operates under contract with the Department of Children and Families. The Hope Center serves males and females from the age of 12 years to the age of 70 years. Most of the residents are adults, but the Hope Center also serves children. Mr. Thomas disclosed his criminal background when he applied for the job at the Hope Center, and he discussed his background during his employment interview. Mr. Thomas worked at the Hope Center for a short time but was let go when the background screening done by the Department of Children and Families confirmed his criminal background. Mr. Thomas requested an exemption from disqualification from employment, and the exemption was granted in May 1997. Mr. Thomas was rehired by the Hope Center, where he worked from 1997 until the summer of 2002, when he was laid off due to budget cuts. At the time of the final hearing in January 2003, Mr. Thomas was employed at the Bayview Center of Mental Health, a residential program for mentally ill persons aged 18 through 60 years that is funded by the Department of Children and Families. Mr. Thomas was hired as a horticulture assistant, but, after six months of employment, he was promoted to a residential supervisor, effective January 20, 2003. First request to the Department for an exemption from disqualification from employment. In 1995, a request was made to the Department for a background check on Mr. Thomas, and, in July 1995, Mr. Thomas submitted to the Department an Affidavit of Good Moral Character in which he failed to disclose his criminal record. The Department learned through its background investigation that Mr. Thomas had pleaded guilty to three counts of lewd and lascivious behavior with two girls under the age of 16 years, offenses that disqualified him from working in positions of trust and responsibility. The Department also determined that Mr. Thomas did not have good moral character based on the submission of the false affidavit. Mr. Thomas did not request an exemption from disqualification. In 1996, Mr. Thomas was offered a job of trust and responsibility at the Everglades Youth Development Center, and Outreach Broward, Inc., submitted a request to the Department for a background check of Mr. Thomas. A form entitled Consent to Background Screening that was signed by Mr. Thomas on October 8, 1996, accompanied the request, and Mr. Thomas completed an Affidavit of Good Moral Character on October 8, 1996, in which he disclosed that he had a disqualifying criminal offense. The screening resulted in a determination that Mr. Thomas had an unfavorable/disqualifying sex offense of fondling a child. Mr. Thomas requested an exemption from disqualification from employment, and, after he was notified of the Department's intent to deny his request for an exemption, he requested an administrative hearing before an administrative law judge of the Division of Administrative Hearings. The hearing was conducted on May 5, 1998, and a Recommended Order was entered in which the administrative law judge found that Mr. Thomas had established by clear and convincing evidence that he was entitled to an exemption from disqualification from employment in a position of trust. The administrative law judge accordingly recommended that the Department grant Mr. Thomas an exemption so that he could work at the Everglades Academy with youthful male offenders. The Department entered a Final Order dated July 1998, in which it disagreed with the administrative law judge's recommendation and denied the request for an exemption. Second request to the Department for an exemption from disqualification from employment. In or around June 2002, Mr. Thomas wrote to Governor Jeb Bush regarding his efforts to obtain an exemption from disqualification from employment. In a letter dated June 7, 2002, the Secretary of the Department, W.G. Bankhead, responded to Mr. Thomas and advised him that, because more than three years had passed since his 1996 exemption request was denied, he would be allowed "to request an exemption via the desk review process." Secretary Bankhead directed Ray Aldridge, supervisor of the Background Screening Unit, to notify Mr. Thomas in writing of the requirements of the desk review process. Mr. Thomas was further advised that he would be required to undergo a criminal history background and driver's license screening. In early July 2002, Mr. Thomas submitted a Request for Desk Review on Disqualification, in which he checked the statement: "I request a Desk Review of my request for an exemption from disqualification based on the fact that I have clear and convincing evidence to support a reasonable belief that I am of good moral character." As part of the desk review, persons requesting exemptions are required to submit a letter describing the nature of their criminal offenses and their life since they committed the offenses. The following paragraph is contained in a letter to Mr. Aldridge dated July 28, 2002, and signed by Mr. Thomas: On August twenty second, nineteen eighty- seven, I Anthony L. Thomas was charged with sex offenses: two counts against a child, fondling/lewd and lascivious acts. On January fifteenth, nineteen eighty-eight I was found guilty of the two counts against a child, fondling/lewd and lascivious acts. I was sentence to complete seven years probation, which included attending counseling for sex offenders. In the next paragraph of the letter, Mr. Thomas refers to a single victim.4 The results of the Department's background screening were sent to the Department's Inspector General in a memorandum dated August 13. 2002. In the memorandum, Mr. Thomas's criminal history is described as "Sex offense - Against Child Under 16 - Lewd and Lascivious Act," with an arrest date of August 22, 1987. The false Affidavit of Good Moral Character submitted July 10, 1995, was noted in the memorandum as "Other history, which is not disqualifying." On September 9, 2002, the Department's Inspector General indicated on the memorandum that Mr. Thomas's request for an exemption from disqualification from employment was again denied. Subsequent to notice of the intent to deny the exemption request, Mr. Thomas requested the instant administrative hearing. Work record and character of Mr. Thomas. Mr. Speight was a team leader at the Victor Cullen Academy in 1994-1995, and Mr. Thomas worked on his team. Mr. Speight observed Mr. Thomas's job performance and found that the children in his charge were comfortable with Mr. Thomas and that Mr. Thomas did an excellent job with the children. Mr. Speight did not observe Mr. Thomas engage in any inappropriate conduct during his time at the Victor Cullen Academy. During the years he was employed at the Hope Center, from 1997 until the fall of 2002, Mr. Thomas worked in both the residential program supervising the residents and as an assistant in the social services program, arranging for services to residents, planning and supervising residents on outings and field trips, and communicating with residents' families. Aileen Phelan and David Chiverton, two of his supervisors at the Hope Center, consider Mr. Thomas an exemplary employee: He worked exceptionally well with the residents of the Hope Center, was attentive to the needs of the residents, was very caring, had a good work ethic, and was always willing to help where help was needed. Neither Ms. Phelan nor Mr. Chiverton observed Mr. Thomas engage in any inappropriate behavior during the seven years he worked there. Both were aware of his criminal background, including the charges of sexual misconduct with a minor client while he was a counselor in the Police Athletic League and the violation of probation for failing to complete sex offender counseling. They were not, however, aware that Mr. Thomas had pleaded guilty to charges involving two girls under the age of 16 years; Mr. Thomas had told them he had sexual contact with one girl. The knowledge that the criminal charges involved two girls did not alter Ms. Phelan's and Mr. Chiverton's opinions, based on their long association with Mr. Thomas and their familiarity with him as a person and as an employee working with developmentally disabled persons, that he is suitable for employment in a position of trust and that he should be granted an exemption from disqualification from such employment. Mr. Chiverton has such a high opinion of Mr. Thomas and his contributions to the community that, in April 2000, he extended an invitation to Mr. Thomas to serve as a trustee of the Foundation of Community Assistance and Leadership, of which Mr. Chiverton is the Executive Director. As the Program Director of the Everglades Youth Development Center, Mr. Speight would hire Mr. Thomas in an appropriate position at the Everglades Youth Development Center were the Department to grant him an exemption from disqualification from employment in a position of trust. In addition to being familiar with Mr. Thomas's work with children at the Victor Cullen Academy, Mr. Speight has spoken with some of Mr. Thomas's supervisors and co-workers over the past seven or eight years. Although Mr. Speight is aware that Mr. Thomas engaged in a sexual act with a minor in 1987, Mr. Thomas has been a good citizen during the years Mr. Speight has known him. In Mr. Speight's opinion, based on his personal knowledge of Mr. Thomas's character and of his work with high-risk juveniles and on the references from his co-workers, Mr. Thomas would be a highly desirable employee at the Everglades Youth Development Center, and he should be granted the exemption from disqualification from employment in a position of trust that will enable him to work at the Everglades Youth Development Center. Mr. Thomas acknowledges that, even though they had been dating for some time and he cared for her, he was wrong to engage in sexual behavior with Lonnette Frazier. He has been in touch with Ms. Frazier over the years and understands that she has been to college and is doing well.5 Mr. Thomas has been married since November 1999 to Francia Thomas, whom he met when he attended Bethune Cookman College in 1990-1991. Ms. Thomas is a high school business education teacher, and she and Mr. Thomas have a four-year-old son. Ms. Thomas has been aware of her husband's criminal history since shortly after they met. Mr. Thomas is currently attending college to complete his bachelor's degree. He believes that he can be a good example to youthful offenders and can show them that life does not end when you get in trouble as long as you change and use your life to do good. Summary The credible and persuasive evidence submitted by Mr. Thomas is sufficient to establish clearly and convincingly that he is rehabilitated, that he is of good moral character, that he is currently fit for employment in a position of trust and responsibility with the Department, and that he should be granted an exemption from disqualification from employment: Mr. Thomas was 19 years of age when he was arrested and charged with three counts of lewd and lascivious behavior with two girls under the age of 16 years, and 15 years have passed since he pleaded guilty to these offenses. At the time, the criminal court judge believed that Mr. Thomas was unlikely to engage in criminal behavior in the future, and he withheld adjudication of guilt. The only subsequent criminal violation in Mr. Thomas's background is the violation of probation in 1992. Mr. Thomas's failure to comply with two conditions of his probation was not the result of a bad and purposeful disobedience. Rather, Mr. Thomas's failure to attend sex offender counseling was the result of a lack of money to pay for the counseling, and his failure to pay a total of $84.00 to First Step, Inc., was the result of a misunderstanding of his obligation to pay the $12.00 per year fee. Mr. Thomas was granted early release from probation in July 1994, having successfully completed all of the conditions of his probation. Mr. Thomas long ago fulfilled the requirements imposed on him by Florida's criminal justice system, and he has no criminal history since the probation violation in 1992 but has, by all accounts, lived a good and productive life. Mr. Thomas has worked in positions of special trust with young people and with developmentally disabled children and adults since his release from probation in 1994: He worked with juveniles in a high-risk treatment facility in Maryland before returning to Florida in 1995; he was employed for seven years at the Hope Center as a residential instructor; and he is currently working as a residential supervisor at a center in Pembroke Pines that serves mentally ill residents. Mr. Thomas has the respect and loyalty of former supervisors and co-workers in these programs, and they describe a man who was an exemplary employee and a caring social service worker with whom adults and children were comfortable. The evidence is, therefore, sufficient to support a firm and unhesitating belief that Mr. Thomas would not pose a threat to children were he permitted to work with juveniles committed to the care of the Department.6 Mr. Thomas is married, he has a child and a stable home life, and he is completing his college education. Mr. Thomas admits that, in 1995, he submitted a false Affidavit of Good Moral Character in which he failed to disclose that he had pleaded guilty to a disqualifying offense. Although the false affidavit Mr. Thomas prepared in 1995 could reasonably serve as a basis for denying his 1996 request for an exemption from disqualification from employment, seven and one-half years have elapsed and Mr. Thomas has fully disclosed and discussed his criminal history with the Department. In light of his personal and employment history since 1995, Mr. Thomas's failure to disclose this criminal history in 1995 is not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Mr. Thomas's failure to state in the July 28, 2002, letter to Mr. Aldridge that he was charged with three counts of lewd and lascivious behavior with two separate girls under the age of 16 years is, likewise, not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Although Mr. Thomas pleaded guilty to the three counts of lewd and lascivious behavior in 1987, when he was 20 years old, the credible and persuasive evidence establishes that he did so as part of a plea bargain to avoid what he feared could be a prison sentence of 25 years. Throughout the hearing, Mr. Thomas proclaimed his innocence with respect to the charge that he engaged in lewd and lascivious conduct with Carolyn Coston, and he repeatedly asserted that he had actually engaged in conduct of a sexual nature only with Lonnette Frazer, and the omission in the letter of reference to the third count of and the second girl named in the Information is a minor error of omission that is insufficient to outweigh Mr. Thomas's personal and employment history during the past nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Anthony L. Thomas an exemption from disqualification from employment in a position of trust or responsibility with the Department of Juvenile Justice. DONE AND ENTERED this 17th day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2003.
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (Respondent) wrongfully awarded a contract to provide juvenile alternative services in Polk, Hardee and Highlands Counties to Bay Area Youth Services, Inc. (Intervenor) rather than the existing Provider, Juvenile Services Program, Inc. (Petitioner). At the hearing the parties stipulated to the introduction of seven joint exhibits. Petitioner called six witnesses, aid Respondent called one witness. A transcript of the hearing was filed on September 28, 1987, and the parties were allowed ten days thereafter to file Proposed findings of fact, conclusions of law and memoranda. The Appendix to this Recommended Order contains a ruling on each timely filed Proposed finding of fact.
Findings Of Fact On or about April 24, 1987, Respondent issued a Request For Proposal (RFP) for the Juvenile Alternative Services Project (JASP) in Polk, Highlands and Hardee Counties. JASP is designed to serve delinquent children and status offenders, and is intended to reduce the incidents of their repeated contacts with the juvenile justice system through a program of meaningful sanctions and services. The program is available as a dispositional alternative by referral from Respondent's intake units, the State Attorney's Office and the Juvenile Division of the Circuit Court. Specific services to be Provided under this RFP include victim negotiation, community work programs, restitution, family counseling service and volunteer counseling services. The RFP calls for Providing services to 585 clients from July 1, 1987 through June 30, 1988. Petitioner and Intervenor each timely submitted proposals in response to the RFP. Petitioner is a social service agency with administrative offices in St. Petersburg, and Intervenor is a private service agency with offices in Tampa. Petitioner is the existing JASP provider in Polk, Hardee and Highlands Counties. The RFP designates $131,654.86 as the anticipated funding level for this program, and Petitioner's proposal identified $131,655 for the provision of the requested services to a minimum of 585 clients while Intervenor's proposal identified $126,631 to provide these services to a minimum of 636 clients. The proposals submitted by Petitioner and Intervenor were responsive to the RFP. Pursuant to the RFP, a seven-member selection team was designated to review and evaluate the responsive proposals. Representative of Respondent on the selection team included JoAnne Harvey, Kevin Roberts and Tom McFadyen; the courts were represented by Jim Vanderwalker, the State Attorney's Office by Steve Houchins, the Public Defender's Office by Jay B. Haviser, and the community by Fran Martin Shiver from the Polk County Sheriff's Office. RFP responses were opened at 4:30 p.m. on June 1, 1987, and the selection team met at 9:00 a.m. on June 3, 1987. Five of the selection team members attended the meeting and participated in the evaluation of these two proposals; Haviser and Shiver did not attend. The RFP specifies that the evaluation was to be completed on June 4, 1987, and that the selection team, upon completion of its review, would submit its "recommendation" to Respondent's contract signer for award "based upon the recommendation made by the selection team and taking into consideration which bidder's offer is most advantageous to the Department." Selection team members Houchins, Roberts and Harvey recommended that Intervenor be awarded the contract, and members Vanderwalker and McFadyen recommended Petitioner. Vanderwalker rated Petitioner one Point higher than Intervenor and McFadyen rated Petitioner three Points higher than Intervenor. Members recommending Intervenor all did so by a greater point spread than members selecting Petitioner. Intervenor received a total of 1325 Points to 1284 for Petitioner, of a total Possible Points of 1625. The selection team, through its chairperson JoAnne Harvey, submitted its report and recommendation on June 4, 1987 that the JASP contract be awarded to Intervenor, and on or about June 11, 1987 Petitioner received formal notification of Respondent's intent to award this contract to Intervenor. On the same day Petitioner filed its notice of intent to Protest, and thereafter Petitioner timely filed its request for hearing on or about June 19, 1987 alleging that the award Procedure was "deficient" and that the deficiency resulted in their not receiving the award. Specifically, it is alleged that the selection team based its recommendation upon erroneous facts and information Provided to it by Chairperson Harvey and Diane Morton, JASP contract manager with Respondent who selected the team members, coordinated, scheduled and attended the team meeting. Chairperson Harvey took notes of the selection team meeting and her report was based upon those notes. Neither a transcript or tape recording of the team meeting was required by the RFP, nor were they made. No opportunity for oral presentations by providers was allowed in the RFP, nor was any provided before the selection team. Although Chairperson Harvey had received and reviewed the proposals prior to the meeting, some of the selection team had not, and therefore time was allowed at the beginning of the meeting for each member to review the two proposals and to ask Diane Morton technical, non-substantive questions about each proposal. Based upon the testimony of McFadyen, Morton and Harvey, Morton functioned only as a facilitator or coordinator during the meeting, assisting members in finding certain items or subject matter in each proposal, and determining if the automatic disqualification items of Part A on the proposal rating sheet applied to either proposal. However, Morton made no qualitative judgments about either proposal, and responded only to members' questions. Her participation assisted, rather than impaired, the fairness and integrity of the process. Following the time allotted for review and asking technical questions, each member completed the rating sheet individually, and thereafter the scores were announced. A discussion period was then provided during which members explained the basis for their evaluation of each Proposal. Following this discussion, members could change their rating based upon new information and the comments of other members, but in this instance no member changed his rating. The final ratings and recommendations were then announced. There is no evidence that the selection team acted arbitrarily or capriciously, or in a manner which was inconsistent with the RFP or rules of Respondent. The sole basis for team member ratings of each Proposal was their own evaluation of each Proposal; there is no evidence of "erroneous" facts or information being supplied to the team by Harvey or Morton. No member of the team asked for additional time to review or rate the Proposals during the meeting on June 3, although the evaluation did not have to be completed until the next day, June 4. At hearing, Petitioner sought to establish that Intervenor did not include a required Civil Rights Statement. The RFP lists a series of appendices which "must" be attached to each Proposal. Appendix 9(g) references a "Civil Rights Statement (Attachment IV of the RFP)." However, Attachment IV to the RFP is a "Civil Rights Certificate" not a "Civil Rights Statement." Attachment X of the RFP is a Civil Rights Compliance Checklist, and Intervenor included Attachment X, rather than the required Attachment IV with its RFP. However, question 6 of the Checklist asks whether "an Assurance of Compliance (is already) on file with HRS?" Intervenor answered this question on the Checklist in the affirmative. The required Attachment IV, Civil Rights Certificate, is the Assurance of Compliance referred to in question 6. Therefore, the unrebutted record in this case establishes that Intervenor already had on file with Respondent the required Attachment IV, and Respondent reasonably accepted this previous filing, along with the additional civil rights information provided on the Checklist as compliance with the RFP Appendix 9(g) requirement. It is also apparent from Section VI, A, 3. of the RFP that the failure to include Appendix IV will "not be fatal to the consideration of the proposal and that only five points are to be given for this Attachment. The three committee members who recommended Intervenor each gave Intervenor the five points on this item; however, even if this five points is deducted from Intervenor's score, Houchins, Roberts and Harvey still would have rated Intervenor higher than Petitioner, and Intervenor's overall point total would still have exceeded Petitioner's. Petitioner produced the testimony of Peter Schatzel, Certified Public Accountant, to establish that Intervenor is not financially able to sustain and carry out the JASP proposal. However, Schatzel had not reviewed any audited or unaudited financial statements for Intervenor covering the period after June 30, 1986, and thus had no knowledge of Intervenor's current financial condition. Chairperson Harvey testified that a successful bidder can receive an advance of amounts due under a contract to support start-up costs. It was therefore not established, by competent substantial evidence, that Intervenor would not be financially able to carry out its obligations under this contract.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the bid protest filed by Petitioner. DONE AND ENTERED this 14th day of October, 1987, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2800BID Petitioner filed Closing Argument on October 7, 1987 which has been considered in the preparation of this Recommended Order. However, no specific ruling thereon can be made since this is not a proposed finding of fact as provided in Rule 22I- 6.031, F.A.C. COPIES FURNISHED: Dominic Amadio, Esquire 100 34th Street North Suite 305 St. Petersburg, Florida 33713 Frederick P. Wilk, Esquire 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 William F. Bowman 2410 East Busch Boulevard Suite 303 Tampa, Florida 33612 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
Findings Of Fact On or about November 18, 1994, Petitioner submitted a state employment application for a position as a Detention Care Worker II (DCW II), position number 40756 with the Department of Juvenile Justice. A DCW II is responsible for the care and custody of juvenile offenders and for providing counsel and advise to these offenders. Respondent submitted the application to Alexander Wynn, who was at that time superintendent for the Orlando Regional Juvenile Detention Center. It was the responsibility of Superintendent Wynn to review all the applications submitted for the open position, interview the candidates and submit a recommendation to his superiors for hire in the position. At the time of submission, Petitioner had not answered the questions regarding his background which appear in the first block on page 3 of the application. Petitioner informed Superintendent Wynn during the interview that he was not sure how to answer the questions as he was not aware of the degree of one offense in his background and because his record had been cleared of the charges. Superintendent Wynn instructed Hall to provide him with documents from the court which indicated the nature of the offense and its disposition. Petitioner was asked on his state application whether he had ever pled guilty or nolo contendere to a crime which is a felony or first degree misdemeanor. Petitioner responded to this question in the negative. Petitioner was also asked on his state application whether he had ever had the adjudication of guilt withheld on a crime which is a felony or first degree misdemeanor; again Petitioner responded in the negative. Petitioner was charged in February of 1994 with one court of violating Section 784.03(1)(a), Florida Statutes, battery. A violation of Section 784.03(1)(a), Florida Statutes, is a first degree misdemeanor. The information which was filed on Petitioner specifies that the battery charge resulted from the fact that Petitioner, "on or about the 9th day of November 1993, within Volusia County, Florida, did actually and intentionally touch or strike Lucretia Hall against her will by squeezing victim around the neck and/or forcing victim onto the bed." At the time of the battery, Petitioner was married to and living with Lucretia Hall. The court withheld adjudication of guilt pending Petitioner's successful completion of probation. Petitioner was placed on probation for one year, ordered to participate in marriage counseling, and pay court costs or perform 25 hours of community service. Petitioner successfully completed probation. Probation was terminated and the case was closed. Petitioner provided Wynn with a document indicating his judgment and sentence and his release from probation. Wynn stated that he was satisfied that the documents cleared Petitioner and, accordingly, Petitioner followed Superintendent Wynn's instructions and answered the questions per his direction. Wynn informed Petitioner that he would file the documents in Petitioner's personnel file, and if anyone had any questions regarding the charge to refer them to him. By letter of September 30, 1994, Petitioner was offered a permanent position as a Detention Care Worker II at the Orlando Regional Detention center. He began work on or about November 27, 1994. Petitioner was subsequently fingerprinted and a background screening was conducted. Following the completion of a background screening, Petitioner was notified that he was not eligible for employment in a caretaker's position and was terminated by Respondent on June 14, 1995, pursuant to allegations that he had plead guilty to domestic battery and was the subject of a confirmed abuse report. This was the only allegation of domestic abuse in his nine-year marriage to Lucretia Hall. Petitioner has remarried since the incident and has never exhibited any violent tendencies towards his current wife or his stepchildren. Sufficient time has lapsed since the incident and he has demonstrated rehabilitation. Petitioner has demonstrated that he is a reliable person of good moral character. There is not, nor has there been, any evidence of a confirmed abuse report against the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a final order granting an exemption to Petitioner, Richard Hall. DONE and ENTERED this 31st day of July, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5896J To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4 (in part) 5 (in part), 6, 7, 8 (in part), 9 (in part), 10 (in part), 11 (in part), 12 (in part), 13, 14 (in part), 15, 16 (in part), and 17. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 6, 7, 8, 9, 10, 11 (in part), 12 (in Preliminary Statement), 13 (in Preliminary Statement), 14 (in Preliminary Statement). Rejected as hearsay or immaterial and irrelevant: paragraphs 4, 5, 11 (in part). COPIES FURNISHED: Kenneth W. Williams, Esquire Irvin Williams and Associates 1103 W. Willow Run Drive Port Orange, Florida 32119 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue is whether the Petitioner forfeited his retirement benefits due to criminal convictions.
Findings Of Fact According to the Petition for Hearing, the Petitioner was an educator employed with the Brevard County School Board and taught in a public elementary school when he was charged with lewdly molesting six minor female students during the 2000/2001 academic year by patting or touching them on their clothed buttocks or clothed breasts. The charges were filed in March 2001. The Petitioner denied the charges and stood trial by jury. In January 2005, the Petitioner was adjudicated guilty on three second-degree felony counts of lewd molestation and one first-degree felony count of lewd molestation in violation of section 800.04(5), Florida Statutes. The former investigator for the State Attorney’s Office that prosecuted the Petitioner testified at the final hearing in this case that the alleged victims made statements to him about the Petitioner’s crime and its relation to his employment as a teacher, and that he went to the school to document the setup of the Petitioner’s classroom. The investigator had no personal knowledge, and it was unclear from his testimony whether he received information about the Petitioner’s crime and its relation to his employment from anyone other than the alleged victims. The Petitioner was a member of the Florida Retirement System (FRS) at the time of the criminal charges against him and would have been entitled to retirement benefits if it were not for the criminal convictions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order: denying the Petition for Hearing; and holding that the Petitioner forfeited his retirement benefits, except for the return of any accumulated contributions, when he was convicted of felonies for lewd or lascivious molestation of minor female students at the school where he was employed. DONE AND ENTERED this 21st day of October, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2016. COPIES FURNISHED: Thomas D. Sommerville, Esquire Law Offices of Thomas D. Sommerville, P.A. 820 North Thornton Avenue Orlando, Florida 32803 (eServed) Thomas E. Wright, Esquire Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 (eServed) Elizabeth Stevens, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact Respondent, Randolph Scott, began his employment with petitioner, Department of Health and Rehabilitative Services (HRS), on October 25, 1985. He held the position of detention child care worker 1 at the Dade Regional Juvenile Detention Center (Center) in Miami, Florida. When Scott began work, he was given a copy of HRS Pamphlet 60-1, the employee handbook which contained attendance and leave policies. According to the Center's superintendent, Dwight D. Coleman, Scott had attendance and punctuality problems from the onset of his employment. Scott was disciplined on several occasions in 1986 and 1987 for missing work without authorization and being late to work. This is confirmed in various memoranda introduced into evidence as petitioner's exhibits 1-3 and 7. To accommodate Scott and alleviate his attendance problems, Coleman reassigned Scott to a facility closer to his residence. This was because Scott had complained that the traffic congestion between his residence and the Center was responsible for him being late to work. However, the reassignment did not resolve the problems, and Scott eventually returned to the Center in March 1988. After returning to the Center, Scott's attendance was "sporadic" at first but, after April 23, Scott never returned to work except to pick up his paycheck. On those occasions, Coleman asked Scott for an explanation of his absences but received no satisfactory reply. At no time after April 23 did Scott give a reason for his absence in writing or prepare and submit a written leave request as required by HRS rules. Also, Scott was never authorized by a supervisor to be absent from work. At hearing, Coleman explained that he continued to allow Scott to remain on the payroll after April 23 because he was trying to help Scott work out his problems and Scott was a career service employee. According to Scott, he was paid through May 27, 1988. On May 27, 1988 Coleman sent Scott a letter by certified mail advising Scott that his absences since April 23 were not authorized, career service system rules provided that an employee was deemed to have abandoned his job after being absent three consecutive days without leave, and that he must "report to work immediately and provide an explanation for (his) absences." Scott denied receiving the letter since he maintained it was mailed to the wrong address. However, when Scott returned to the Center on June 8 to pick up a paycheck, he was given a copy of the letter. At that time, he declined to fill out a leave form as required by HRS rules and gave no valid reason for being absent. Although Scott made an oral request to take leave, no leave was authorized, and he did not return to work again. On June 13, 1988 Coleman sent Scott a second letter by certified mail advising him that he had been deemed to have abandoned his job effective June 8 by virtue of being absent for three consecutive workdays. Scott acknowledged that he received this letter. On July 21, 1988 Scott requested a hearing to contest the agency's decision. Prior to his termination, Scott had numerous conferences with Coleman and Ernestine W. Thurston, personnel manager for the Center. Despite these meetings, and instructions by them that he comply with HRS leave and attendance policies, Scott never submitted a formal written request for leave. At hearing Scott acknowledged that he did not attend work after April 23 and that he did not fill out a leave request. He declared he had verbally asked for time off but that his assistant supervisor did not "understand" his problems. These problems included being evicted from his apartment, a fear of being arrested at the job site for failing to make child support payments and a death in his fiance's immediate family. Finally, Scott admitted receiving a copy of the employee handbook when he began employment and conceded he was aware of the agency's leave and attendance policies.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of Administration concluding that respondent has abandoned his job. DONE AND ORDERED this 18th day of November, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officers Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1988.
The Issue Whether Petitioner's furlough should be revoked based on his failure to comply with the terms of the furlough agreement which he executed on April 6, 1981. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.
Findings Of Fact Petitioner, Samuel Grant, is a seventeen (17) year-old male who was furloughed to the Department of Health and Rehabilitative Services, Youth Services Division, on April 14, 1981. At that time he agreed to abide by a furlough agreement which required, inter alia, that he (1) obey all laws; (2) not change or leave his residence, employment, or school, or leave the county without the consent of his counselor or other authorized HRS representatives; (3) that he keep in contact with his counselor and (4) that all instructions of his counselor be carried out. Additionally, he agreed to abide by a 9:00 P.M. curfew on week days and an 11:30 P.M. curfew on weekends; attend community mental health for counseling; attend school or find gainful employment and make weekly contact with his counselor on Wednesdays of each week. (Petitioner's Exhibit 2.) On September 8, 1981, the Youth Services Division revoked Petitioner's furlough agreement based on the following facts: (1) Petitioner failed to obey laws and he gambled for his income; (2) failed to follow instructions of his parents and counselor; (3) continuously violated his curfew and (4) failed to attend school or maintain employment. (Petitioner's Exhibits 1 and 3, and Testimony of Jesse Morris, Petitioner's counselor while furloughed at the Belle Glade Youth Center.) The evidence herein also reveals that Petitioner was expelled from school because he possessed marijuana and his mother testified herein that he violated his curfew on numerous occasions. Petitioner's mother indicated that he spent nights away from home on a number of occasions and that he was afforded an opportunity to work with his father, a contractor, who extended a job offer to Petitioner. Petitioner has repeatedly run afoul of criminal laws from December, 1978, through October, 1980, including, but not limited to: (1) unauthorized use of a motor vehicle; (2) malicious mischief; (3) resisting arrest with violence; (4) possession of burglary tools, night prowling, and (5) burglary and grand larceny. Petitioner does not dispute the above findings; offered that he felt that he was not breaking the law and that he did not consider that it was "right" for him to attend school. He offered no explanation as to his failure to accept the offer of employment extended by his father.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's Order of September 8, 1981, revoking Petitioner's furlough, and ordering him to be reassigned to another program or facility as soon as practical, be SUSTAINED. RECOMMENDED this 1st day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1982. COPIES FURNISHED: Samuel L. Grant c/o Florida School for Boys Route 7, Box 250 Okeechobee, Florida 33472 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401
